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What Do New Marijuana Laws Mean for the Workplace?

Federal law conflicts with some state laws regarding marijuana usage, so here's a cheat sheet for association HR departments wanting to comply.

Bob Marley said, "To make marijuana against the law is like saying God made a mistake." While all state legislatures may not concur entirely with that sentiment, many have concluded that legalization in some form makes sense.

As of February 2017, NORML indicated that 20 states have decriminalized marijuana, which means that minimal possession will not earn someone prison time or a criminal record. The District of Columbia and eight additional states have legalized it, which means that possessing small amounts will not result in any civil or criminal penalties, and 28 states have enacted laws permitting its use for medical purposes.

The remaining states maintain that the use and possession of marijuana is a crime punishable by jail time and fines. This view is consistent with the federal law that classifies marijuana as a Schedule 1 substance under the Controlled Substances Act, which means that marijuana is illegal to use or possess in any amount, that it has no legitimate medicinal purpose, and that it poses a high-risk potential for abuse.

With conflicting laws on the books, it begs the question: What is the law of the land?

This strong dichotomy has led to several employment disputes, including court cases in California, Colorado, and Washington state, where more permissive legislation regarding possession and use of cannabis has been enacted. In litigation, courts have allowed employers to drug-test and terminate employees regardless of state laws and have not required organizations to provide a "reasonable accommodation" for illegal activity, such as the use of marijuana, under the Americans With Disabilities Act.

In Coats v. Dish Network, the plaintiff was using marijuana as a result of complications from his quadriplegia. His employer had a zero-tolerance policy on drug use and subsequently tested Coats before renewing his contract with Dish. Since Coats tested positive for marijuana, he was terminated. He argued that his usage of the drug was permissible and that his firing was unfair, citing the Medical Marijuana Amendment to the Lawful Off-Duty Activities (LODA) statute in Colorado. But the Colorado Supreme Court disagreed, finding that the concept of "lawful activity" applied to both state and federal legislation, and since marijuana was illegal under the Controlled Substances Act, Coats' termination was upheld.

Roe v. TeleTech Customer Care Management provides another example of how the courts are dealing with medical marijuana users in the workplace. Roe was a cannabis user under Washington state's Medical Use of Marijuana Act (MUMA). As a condition of employment with TeleTech, he was required to submit to a drug test, which yielded a positive result for marijuana use and Roe's job offer was rescinded. Roe claimed that by consuming cannabis under MUMA, his actions were permissible and his job offer should then be reinstated. The Supreme Court of Washington disagreed, holding MUMA does not protect an employee from discharge for medical marijuana use.

Cases like these illuminate two takeaways for association and HR professionals: First, the doctrine of preemption under the Supremacy Clause of the U.S. Constitution, which mandates that federal law trumps state law, is critical to these outcomes. And second, it is essential that employers have a detailed policy on drug use and impairment.

Under the Drug Free Workplace Act some federal contractors and all federal grantees agree to provide drug-free workplaces as a condition of receiving a contract or grant from the federal government. Therefore, these types of organizations must have a policy that prohibits illegal drug use, including marijuana, and expresses what actions are to be taken for violations. These organizations also must provide education in the work environment about the dangers of drug use.

For those outside of government, here's a checklist of what organizations should include in their policies:

Employees may make their own lifestyle choices but such activity cannot interfere with job performance.

Employees may not report for duty or remain on duty while impaired.

Employees may not consume or possess alcohol or drugs during working hours.

Employees are subject to drug testing (the legality of when may depend on the state involved).

Employees who refuse such drug testing will be terminated.

Employees who fail to comply are subject to disciplinary action, including termination.

The law is likely to continue evolving this year, so vigilance will be important to ensure association and employee rights and protect against liability.